<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 31, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE PANTRY, INC.
(Exact name of registrant as specified in its charter)
Delaware 56-1574463
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. Box 1410
1801 Douglas Drive
Sanford, North Carolina 27331
(919) 774-1600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------------
THE PANTRY, INC. 1998 STOCK SUBSCRIPTION PLAN
(Full title of the plan)
William T. Flyg
Chief Financial Officer
P.O. Box 1410
1801 Douglas Drive
Sanford, North Carolina 27331
(919) 774-6700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
COPIES TO:
Roger H. Lustberg, Esq.
Riordan & McKinzie
300 South Grand Avenue, 29th Floor
Los Angeles, California 90071
(213) 629-4824
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED PER SHARE OFFERING PRICE FEE
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($0.01 3,100 $575 $1,782,500 $526
par value per share) shares
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</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by The Pantry, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
(1) Annual Report on Form 10-K for the fiscal year ended September 25,
1997;
(2) Quarterly Report on Form 10-Q for the quarterly period ended December
25, 1997;
(3) Quarterly Report on Form 10-Q for the quarterly period ended March 26,
1998;
(4) Quarterly Report on Form 10-Q for the quarterly period ended June 25,
1998; and
(5) Current Report on Form 8-K dated July 2, 1998.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and prior to the filing of a post-
effective amendment to the Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents. Any statement contained in any document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein, modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Registrant's authorized capital stock consists of 300,000 shares of
Common Stock, $.01 par value, and 150,000 shares of preferred stock, $.01 par
value.
Common Stock
Holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders. There is no
cumulative voting for the election of members of the Board of Directors.
Subject to preferences that may be applicable to any outstanding preferred
stock, holders of Common Stock are entitled to receive ratably such dividends as
may be declared by the Board of Directors out of funds legally available
therefor. In the event of a liquidation, dissolution or winding up of the
Registrant, holders of Common Stock are entitled to share ratably in all assets
remaining after payment to all creditors and payments required to be made in
respect of any outstanding preferred stock. Holders of Common stock have no
preemptive rights and have no rights to convert their Common Stock into any
other securities. All of the outstanding shares of Common Stock are, and the
shares being offered hereby will be, upon issuance and sale, fully paid and
nonassessable.
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Preferred Stock
The Registrant's Certificate of Incorporation authorizes the issuance in
series of up to 150,000 shares of preferred stock, and permits the Registrant's
Board of Directors to establish the voting rights, designations, powers,
preferences and relative and other special rights and the qualifications,
limitations and restrictions of each of such series. As of the date hereof,
43,499 shares of Preferred Stock are issued and outstanding, 25,999 shares of
which have been designated as "Series A" and 17,500 shares of which have been
designated as "Series B."
Series A
Except as required by Delaware law, the holders of the Series A Preferred
Stock (i) shall not be entitled to vote on any matter coming before the
stockholders of the Registrant and (ii) shall not be included in determining the
number of shares voting or entitled to vote on any such matters. The holders of
Series A Preferred Stock are entitled to cumulative dividends from the
Registrant on each share of Series A Preferred Stock at a semi-annual rate equal
to $60.00 per share plus an amount determined by applying a twelve percent (12%)
annual rate compounded semi-annually to any accrued but unpaid dividend. Such
dividends on the outstanding shares of Series A Preferred Stock shall be payable
at such intervals as the Board of Directors of the Registrant may from time to
time determine and may be paid in cash or by issuing additional shares,
including fractional shares of Series A Preferred Stock, at the rate of one
share for each $1,000 of dividends outstanding.
Upon the dissolution, liquidation or winding up of the Registrant, whether
voluntary or involuntary, the holders of outstanding shares of Series A
Preferred Stock, shall be entitled to be paid out of the assets of the
Registrant available for distribution to its stockholders, whether such assets
are capital, surplus or earnings, before any payment or declaration and setting
apart for payment of any amount shall be made in respect of the outstanding
shares of the Registrant's Common Stock, but following the preferences of Series
B Preferred Stock as discussed herein, an amount equal to each $1,000 per share
of Series A Preferred Stock then outstanding, plus all accrued but unpaid
dividends thereon to the date fixed for liquidation (whether or not declared),
and no more. If upon the dissolution, liquidation or winding up of the
Registrant, whether voluntary or involuntary, the assets to be distributed after
satisfaction of the preferences of Series B Preferred Stock among the holders of
outstanding shares of Series A Preferred Stock shall be insufficient to permit
the payment to such stockholders of the full preferential amounts aforesaid,
then the entire assets of the Registrant to be distributed ratably among the
holders of outstanding shares of Series A Preferred Stock based on the full
preferential amounts for the number of outstanding shares of Series A Preferred
Stock held by each holder.
Series B
At all meetings of the stockholders of the Registrant and in the case of
any actions of stockholders in lieu of a meeting and holder of the Series B
Preferred Stock shall be entitled to ten (10) votes per share and except as
required by Delaware law shall vote together with the holders of Common Stock as
a single class. In addition, without consent of the holders of a majority of
the outstanding shares of Series B Preferred Stock, voting separately as a
single class, the Registrant is restricted from: (i) the issuance of any
securities with equal or superior rights with respect to dividends or
liquidation preferences, (ii) the repurchase of any shares of, making of any
dividend or distribution to, or any reclassification with respect to any of the
Registrant's outstanding shares of capital stock, and (iii) amendment or
modification of the Registrant's Certificate of Incorporation or Bylaws so as to
adversely affect the relative rights, preferences, qualification, limitations or
restrictions or the Series B Preferred Stock.
The holders of Series B Preferred Stock are entitled to cumulative
dividends from the Registrant on each share of Series B Preferred Stock at a
quarterly rate equal to $32.50 per share plus an amount determined by applying a
thirteen percent (13%) annual rate compounded quarterly to any accrued but
unpaid dividend. Such
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dividends on the outstanding shares of Series B Preferred Stock shall be payable
at such intervals as the Board of Directors of the Registrant may from time to
time determine and may be paid in cash or by issuing additional shares,
including fractional shares of Series B Preferred Stock, at the rate of one
share for each $1,000 of dividends outstanding.
Upon the dissolution, liquidation or winding up of the Registrant, whether
voluntary or involuntary, the holders of outstanding shares of Series B
Preferred Stock, shall be entitled to be paid out of the assets of the
Registrant available for distribution to its stockholders, whether such assets
are capital, surplus or earnings, before any payment or declaration and setting
apart for payment of any amount shall be made in respect of the outstanding
shares of any other class or series of the Registrant's capital stock, including
without limitation, shares of Series A Preferred Stock and of Common Stock, an
amount equal to $1,000 per share of Series B Preferred Stock then outstanding,
plus all accrued but unpaid dividends thereon to the date fixed for liquidation
(whether or not declared), and no more. If upon the dissolution, liquidation or
winding up of the Registrant, whether voluntary or involuntary, the assets to be
distributed among the holders of outstanding shares of Series B Preferred Stock
shall be insufficient to permit the payment to such stockholders of the full
preferential amounts aforesaid, then the entire assets of the Registrant to be
distributed ratably among the holders of outstanding shares of Series B
Preferred Stock based on the full preferential amounts for the number of
outstanding shares of Series B Preferred Stock held by each holder.
The Board of Directors has the authority without stockholder approval to
issue the remaining authorized preferred stock in one or more series and to fix
the rights, preferences, privileges and restrictions thereof, including the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), the redemption price or
prices, the liquidation and preferences imposed on any unissued series of
preferred stock, and the number of shares constituting any series or the
designation of such series. The Registrant presently has no plans or
arrangements for the issuance of any additional preferred stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Article VI of the Registrant's
Certificate of Incorporation provides that the Registrant may indemnify its
officers and directors to the full extent permitted by law. Section 145 of the
General Corporation Law of the State of Delaware (the "GCL") provides that a
Delaware corporation has the power to indemnify its officers and directors in
certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no cause to believe his
or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by
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reason of the fact that such person acted in any of the capacities set forth
above, against expenses actually and reasonably incurred in connection with the
defense or settlement of such action or suit provided that such director or
officer acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
may be made in respect of any claim, issue or matter as to which such director
or officer shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
was brought shall determine that despite the adjudication of liability such
director or officer is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation shall have power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article V of the Registrant's Certificate of Incorporation currently
provides that each director shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which
the director derived an improper benefit.
The Registrant has entered into indemnity agreements with each of its
directors. The indemnity agreements generally indemnify such persons against
liabilities arising out of their service in their capacities as directors,
officers, employees or agents of the Registrant. The Registrant may from time
to time enter into indemnity agreements with additional individuals who become
officers and/or directors of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Riordan & McKinzie as to the legality of the Common Stock
registered hereby.
23.1 Consent of Riordan & McKinzie (included in Exhibit 5.1 hereto).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included on the signature page hereto).
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Sanford, State of North Carolina, on August 28, 1998.
THE PANTRY, INC.
By: /s/ Peter J. Sodini
------------------------------
Peter J. Sodini, President and
Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter J. Sodini and William T. Flyg, and each of
them, his or her true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Peter J. Sodini President, Chief Executive Officer August 28, 1998
- --------------------------- and Director (Principal Executive Officer)
Peter J. Sodini
/s/ William T. Flyg Senior Vice President, Finance, Chief August 28, 1998
- --------------------------- Financial Officer and Secretary (Principal
William T. Flyg Financial Officer)
/s/ Joseph J. Duncan Controller (Principal Accounting Officer) August 28, 1998
- ---------------------------
Joseph J. Duncan
Director August __, 1998
- ---------------------------
William M. Wardlaw
/s/ Charles P. Rullman, Jr. Director August 27, 1998
- ---------------------------
Charles P. Rullman, Jr.
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Todd W. Halloran Director August 27, 1998
- --------------------------
Todd W. Halloran
/s/ Jon D. Ralph Director August 27, 1998
- --------------------------
Jon D. Ralph
Director August __, 1998
- --------------------------
Christopher C. Behrens
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page Number
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<C> <S> <C>
5.1 Opinion of Riordan & McKinzie as to the legality of the Common Stock S-1
registered hereby.
23.1 Consent of Riordan & McKinzie (included in Exhibit 5.1 hereto). S-1
23.2 Consent of Deloitte & Touche LLP. S-2
23.3 Consent of PricewaterhouseCoopers LLP. S-3
24.1 Powers of Attorney (included on the signature page hereto).
</TABLE>
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Exhibit 5.1
August 31, 1998
The Pantry, Inc.
P.O. Box 1410
1801 Douglas Drive
Sanford, North Carolina 27331
Ladies and Gentlemen:
You have requested our opinion with respect to 3,100 shares (the "Shares")
of the common stock, $0.01 par value per share (the "Common Stock"), of The
Pantry, Inc., a Delaware corporation (the "Company"), which Shares are to be
issued pursuant to the terms of The Pantry, Inc. 1998 Stock Subscription Plan
(the "Plan"). The Shares are the subject of a Registration Statement on Form S-
8 (the "Registration Statement"), to which this opinion is attached as an
exhibit, to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
We have examined the Company's Certificate of Incorporation and Bylaws,
each as amended, and the Plan. We have also examined the records of corporate
proceedings taken in connection with the adoption of the Plan and the issuance
of the Shares under the Plan.
Based upon the foregoing examinations, we are of the opinion that the
Shares, when offered, sold and paid for pursuant to the Plan, will be duly
authorized, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Riordan & McKinzie
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Exhibit 23.2
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement of
The Pantry, Inc. on Form S-8 of our reports dated December 5, 1997, included in
the Annual Report on Form 10-K of The Pantry, Inc. for the year ended September
25, 1997.
/s/ Deloitte & Touche LLP
Raleigh, North Carolina
August 31, 1998
S-2
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
The Pantry, Inc. on Form S-8 of our report dated November 30, 1995 on our audits
of the consolidated financial statements of The Pantry, Inc., which report is
included in the Annual Report on Form 10-K of The Pantry, Inc. for the year
ended September 25, 1997.
/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
August 31, 1998
